New Twist In “Natural” Lawsuit

On August 24, 2011, another class action suit regarding “natural” food labeling claims was filed in the Southern District of California. The defendants include Kashi Co. (“Kashi”) and its general manager, as well as Kashi’s parent Kellogg Co. and its President (the complaint also threatens to sweep in numerous other defendants, potentially including certain suppliers). Plaintiffs, a national class of consumers who purchased Kashi products, claim defendants falsely and misleadingly labeled virtually all Kashi products as “all natural” or containing nothing artificial even though the products allegedly do not conform to applicable federal regulations and policies on “natural.” The federal regulations and policies referenced in the complaint include the National Organic Program’s ("NOP’s") regulatory definition of “synthetic,” an inaccurate statement of FDA’s policy on “natural,” USDA’s policy on “natural,” and FDA’s regulatory definition of artificial flavor. Plaintiffs further allege that the products in question do not conform to Kashi’s own definition of “natural,” which states:

Natural food is made without artificial ingredients like colors, flavors or preservatives and is minimally processed.

A natural ingredient is one that comes from or is made from a renewable resource found in nature.

Minimal processing involves only kitchen chemistry, processes that can be done in a family kitchen and does not negatively impact the purity of the natural ingredients.

Based on the referenced regulations and policies, as well as Kashi’s definition of “natural,” plaintiffs assert that a reasonable consumer understands the term “natural” to mean than none of the ingredients are synthetic or artificial, and none of the ingredients have undergone excessive processing.

In what appears to be a new twist, plaintiffs draw on manufacturing and other information from various sources to argue that Kashi’s products contain a number of “unnatural substances,” including but not limited to bromelain, plant sterols, potassium bicarbonate, xantham gum, yeast extract, inulin, cholecalciferol, ascorbic acid, calcium caseinate, lactic acid, high oleic safflower oil, and a number of soy products. The manufacturing information is drawn from NOP regulations (primarily 7 C.F.R. § 202.605(b)), a variety of food additive approval and GRAS listing regulations, the National Library of Medicine’s Hazardous Substances Data Bank, and the Environmental Protection Agency’s pesticide and hazardous substance regulations, among other sources.

Plaintiffs allege that they suffered not just economic injury, but also ingestion of “a substance that is generally harmful to their health, their children’s health, or their unborn fetus’s health,” and being “forced to unwittingly support an industry that contributes to environmental, ecological, or health damage.” Plaintiffs allege numerous causes of action, including unfair business practices, false advertising, breach of express and implied warranty, negligent misrepresentation, and even assault and battery. They request damages, statutory penalties, restitution, punitive damages, attorneys’ fees and expenses, and costs, and an injunction.